Circuit Split Deepens on Sham Marriage Rulings

A federal judge should review a suspected green card marriage, the 7th Circuit ruled, deepening a circuit split over the extent of judicial review in such cases.
Trinidad Kierulf Klene entered the United States in 1994 and married Carl Klene two years later. The Department of Homeland Security granted her permanent resident status based on marriage in 2001. A year later, the couple divorced.

After U.S. Citizenship and Immigration Services denied Klene’s citizenship application in 2006, she filed suit under 8 U.S.C. §1421(c). The statute authorizes federal judges to independently assess an alien’s entitlement to citizenship.
While her suit was pending, Immigration Services initiated removal proceedings against Klene and asked U.S. District Judge James Zagel to dismiss the suit, arguing that removal proceedings denied the court subject-matter jurisdiction.
Zagel agreed, citing jurisdiction-stripping precedent from the 2nd and 5th Circuits.
But the 7th Circuit reversed Friday, addressing each of the four distinct approaches that federal appeals courts have applied.
The eight-page ruling first rejected the 10th Circuit’s reasoning that the start of administrative proceeding moot §1421(c) judicial proceedings.
“There is undoubtedly a concrete, ongoing controversy between Klene and the agency about whether her marriage was fraudulent,” Chief Judge Frank Easterbrook wrote for a three-judge panel. “If Klene is right, she can become a citizen; if the agency is right, Klene will not be naturalized and likely must leave the United States.”
The 7th also diverged from the 4th and 5th Circuits, finding that subject-matter jurisdiction still exists under the statute.
“Jurisdiction concerns the tribunal’s power to hear a case and decide what the law requires,” he wrote. “Congress has authorized district courts to decide whether aliens are entitled to naturalization. No more is necessary for subject-matter jurisdiction.”
Finally, challenging rulings by the 2nd, 6th and 9th Circuits, Easterbrook determined that the statute does not bar federal judges from providing a remedy in the form of a declaratory judgment of entitlement to citizenship.
“A declaratory judgment of entitlement to citizenship would not violate §1429, because it would not order the attorney general to naturalize the alien while a removal proceeding was ongoing,” the decision states. “And a declaratory judgment in the alien’s favor (for example, a judgment declaring that Klene’s marriage was bona fide) would bring the removal proceeding to a prompt.”
The decision brings the 7th Circuit in line with the 3rd Circuit, which released its ruling last March in Gonzalez v. Secretary of Homeland Security.
Easterbrook cautioned: “The existence of overlapping proceedings does not diminish a district court’s power but does present a question on which the judge should exercise sound discretion. A judge asked to enter a declaratory judgment that as a practical matter will dispose of some other case should consider whether a multi-track course of litigation is the best way to resolve the dispute.”
Klene would have been entitled to appeal the results of the agency removal proceedings, but deferential review makes successful appeals of this type rare.
The 7th Circuit said Zagel can either rule on the merits or wait for resolution of Klene’s removal proceedings.

This article was written by JOSEPH CELENTINO and originally published on courthousenews